Overseas Trip Did Not Extend Taxpayer's Time for Filing Tax Court Petition

(Parker Tax Publishing January 2025)

The Tax Court held that, under Code Sec. 6213(a), a taxpayer had 90 days, not 150 days, in which to file a Tax Court petition objecting to an IRS assessment. The court rejected the taxpayer's argument that because she was outside the United States for 24 days of the 90-day period in Code Sec. 6213, she was entitled to the longer 150-day period in that provision which to file her petition. Marcano v. Comm'r, T.C. Summary 2024-26.

Background

On October 2, 2023, the IRS sent a notice of deficiency to Rosa Marcano by certified mail. Marcano was in the United States when the notice was delivered on October 5, 2023. However, from October 23 to 30, 2023, Marcano was on a trip to Cabo San Lucas, Mexico. From December 15, 2023, to January 28, 2024, she was on a trip to Bogota, Colombia. On January 17, 2024, 107 days after the mailing of the IRS notice of deficiency, Marcano's petition objecting to the IRS assessment was filed with the Tax Court. The petition was signed and dated January 10, 2024.

Under Code Sec. 6213(a), the Tax Court's jurisdiction in a deficiency case depends on the issuance of a valid notice of deficiency and the timely filing of a petition within 90 days (or 150 days if the notice is addressed to a person outside the United States), after the notice is mailed (not counting as the last day Saturday, Sunday, or a legal holiday in the District of Columbia). The Tax Court has no authority to extend the period for timely filing. If a petition is not filed within the statutorily prescribed time, the Tax Court must dismiss the case for lack of jurisdiction.

Marcano did not dispute that her petition was untimely under the 90-day period, as that period expired January 2, 2024, and her petition was filed on January 17, 2024. However, she argued that because she was outside the United States for 24 days of the 90-day period, she was entitled to the longer 150-day period. She cited the Tax Court's decision in Wade v. Comm'r, T.C. Memo. 1998-235, as supporting her position. In Wade, the taxpayer left the country the day a notice of deficiency was mailed and did not return for more than two weeks. The Tax Court found the receipt of the notice of deficiency was "delayed approximately 19 days."

The IRS filed a motion to dismiss for lack of jurisdiction on the ground that Marcano's petition was not filed within the time prescribed by Code Sec. 6213(a). Thus, the issue presented to the Tax Court was whether Marcano had 90 days or 150 days in which to file her Tax Court petition.

Analysis

The Tax Court rejected Marcano's reliance on the decision in Wade and dismissed the case. The court held that Marcano had 90 days in which to file her petition and because it was not filed within that period, the court lacked jurisdiction under Code Sec. 6213(a). The Wade decision was inapposite, in the court's view, because in this case there was no delay in the receipt of Marcano's notice of deficiency. The court noted that Marcano was in the United States when the notice was mailed, in the United States when the notice was delivered, and in the United States for almost three weeks thereafter.

However, the court did note that while Marcano may not prosecute her case in the Tax Court, she was not without remedy since she could pay the amount in dispute and file a claim for refund under Code Sec. 7422(a). And, the court said, if that claim was denied (or not acted upon after six months), Marcano would have the option of filing a suit for refund in a district court or in the Court of Federal Claims.

For a discussion of the rules for filing a petition with the Tax Court, see Parker Tax ¶263,510. For a discussion of the rules for filing refund claims, see Parker Tax ¶261,110.

Disclaimer: This publication does not, and is not intended to, provide legal, tax or accounting advice, and readers should consult their tax advisors concerning the application of tax laws to their particular situations. This analysis is not tax advice and is not intended or written to be used, and cannot be used, for purposes of avoiding tax penalties that may be imposed on any taxpayer. The information contained herein is general in nature and based on authorities that are subject to change. Parker Tax Publishing guarantees neither the accuracy nor completeness of any information and is not responsible for any errors or omissions, or for results obtained by others as a result of reliance upon such information. Parker Tax Publishing assumes no obligation to inform the reader of any changes in tax laws or other factors that could affect information contained herein.

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